Superior courts can steer criminal probe, rules SC

New Delhi: The Supreme Court has said that superior courts have the powers to direct investigation into a crime under specific penal provisions of the Indian Penal Code (IPC).

"...it can`t be said that high court had committed any error in exercising its jurisdiction to interdict the investigation of the offence under Section 304 IPC (culpable homicide) against the accused named in FIR," said the apex court bench of Justice P. Sathasivam and Justice Ranjan Gogoi in the case of two teenager`s death in Gujarat in 2008.

"Such power...has to be invoked if the facts of any given case so demand," said Justice Gogoi.

The apex court said this while rejecting a state government plea against the Gujarat High Court`s order quashing the proceedings under Section 304 but allowing investigation and further steps under Section 304 A (causing death by negligence) and Section 23 of the Juvenile Justice (Care and Protection) Act.

The government contended that the Jan 10, 2011, high court order could not restrict the scope of investigation and proceedings to a particular section of the IPC.

The case is rooted in the death of Dipesh and Abhishek, students of Class 6 and 5 respectively in the Gurukul of Bupu Asaram Ashram located at Motela in Gujarat.

Both Dipesh and Abhishek after having dinner at Gurukul July 3, 2008, went missing. Two days later, their bodies were found from the bed of the Sabarmati river close to the ashram.

The ashram authorities did not inform police despite the insistence of the parents of the dead students.

The first information report (FIR) lodged Nov 7, 2011, alleged that on account of delay on the part of the ashram authorities in launching a prompt and effective search of the missing children they could not be rescued alive.

The FIR also highlighted the failure of ashram authorities to effectively man the gates in the ashram.

The apex court rejected the plea of the victims` parents that the seven accused in the case be tried under Section 304 IPC for committing the offence of culpable homicide not amounting to murder.

The apex court said: "To attract the ingredients of the said offence something more positive than a mere omission, lapse or negligence on the part of the named accused will have to be present."

It also dismissed their request for an investigation by the Central Bureau of Investigation.

The court said the commission of the offence of culpable homicide would require some "positive act on the part of the accused as distinguished from silence, inaction or a mere lapse".

"Allegations of not carrying out a prompt search of the missing children; of delay in the lodging of formal complaint with the police; and failure to take adequate measures to guard the access from the ashram to the river, which are the principal allegations made in the FIR, cannot make out a case of culpable homicide not amounting to murder punishable under Section 304 IPC," the judgment read.